S.M.T. v. E.E.E. (memorandum)

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J-S29001-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 S.M.T., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. E.E.E., Appellant No. 2252 MDA 2013 Appeal from the Order entered November 27, 2013 in the Court of Common Pleas of Lebanon County Civil Division, at No(s): 2012-20582 BEFORE: PANELLA, WECHT, and STRASSBURGER*, JJ. MEMORANDUM BY PANELLA, J.: FILED JUNE 24, 2014 of Adams County, entered on November 27, 2013, that granted to S.M.T. in December 2011, in Lawrence County, Tennessee; that granted primary physical custody of Child to Mother; that granted shared legal custody of Child to the parties; and that granted partial physical custody of Child to Father and established a schedule of partial physical custody for Father. We affirm. The parties do not dispute the following facts. Mother and Father are the natural parents of Child. Father also has two other children who reside * Retired Senior Judge assigned to the Superior Court. J-S29001-14 Father is fifty-five years old, resides in Mechanicsville, Virginia, and is a pediatrician with specialties in immunology and pediatrics. Father graduated from the University of Santo Thomas in the Philippines. Father then undertook a fellowship in Allergy and Clinical Immunology training at the Philippines General Hospital. When Father came to the United States, he began a residency program at Marshall University. Following his third year of residency, Father moved to Richmond, Virginia and began working with his current employer, Bon Secours. Father has been employed with Bon Secours for sixteen years and earns approximately $245,000 per year. Mother is thirty-four years old and is employed as a doctor with a specialty in family medicine. Philippines. Mother attended medical school in the In 2010, Mother came to the United States for her residency program with Penn State Hershey Medical Center. Following her residency, Mother sought employment at Crocket Hospital in Tennessee. Mother will earn approximately $185,000 during her first year of work in Tennessee. ce she is not an American citizen. Child resided in Lebanon County, Pennsylvania. Following the birth of Child, Mother and Child stayed with Father in Virginia for six weeks before moving back to Pennsylvania so that Mother could restart her residency program. -2 - J-S29001-14 Father visited on the weekends. Maternal Grandmother and Maternal Grandfather watched Child during t deteriorated, and Mother filed for divorce in June of 2012. On July 18, 2012, Mother filed a Custody Complaint where she sought sole legal and physical custody of Child. A Custody Conciliation Conference was held on August 23, 2012. On August 28, 2012, the Custody Conciliator filed her recommendation, indicating that the parties were able to reach an agreement. Both parties were to have shared legal custody. Mother was to have primary physical custody of the Child, and Father was to have partial physical custody with periods of visitation, as the parties agreed. In essence, the parties agreed to a one week on, one week off custody arrangement. The recommendation was adopted as an Order of Court on August 29, 2012, and the Order became final in 20 days as neither party requested a hearing. On December 28, 2012, Father filed an Emergency Custody Petition and a Petition to Modify the Custody Order. Father sought primary physical custody of the Child in his Petition to Modify the Custody Order. On January 9, 2013, Mother filed a notice that she intended to relocate to Lawrence County, Tennessee in July of 2013 because she was offered employment. On February 1, 2013, Father filed a response to the proposed relocation. On February 14, 2013, Mother and Father appeared for a conference before a Custody Conciliator. As the parties were unable to reach an -3 - J-S29001-14 agreement, mediation. the Conciliator recommended that the case proceed to The mediation was held on March 26, 2013, and Mother and Father were again unable to reach an agreement. The case was referred to the trial court for a hearing. A hearing was held on June 21, 2013. At the conclusion of the trial court also directed that counsel for Mother and Father draft a modified custody stipulation subject to certain directives, including Mother having primary custody subject to Father having partial custody of Child at least one week per month. On November 25, 2013, Mother asserted that counsel drafted a custody stipulation, but Father refused to sign it and desired alterations that were not in accordance with the June 21, 2013 directives. By order dated November 26, 2013, and entered on November 27, 2013, Mother was granted primary physical custody of Child, and Father was granted periods of partial physical custody. Both parties were granted shared legal custody. On December 20, 2013, Father filed a timely notice of appeal. On the same date, Father also filed a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Father presents the following issues for review: 1. [Whether] the trial court committed an error of law and/or abused its discretion in awarding plaintiff primary physical custody of the minor child[?] -4 - J-S29001-14 2. [Whether] the trial court committed an error of law and/or abused its discretion in deciding that the factors set forth in 23 Pa.C.S.A. § 5328 weighed in favor of plaintiff thus awarding her primary physical custody of the minor child[?] 3. [Whether] the trial court committed an error of law and/or abused its discretion in allowing plaintiff to relocate with the Our scope and standard of review is as follows: In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses firstdeductions or inferences from its factual findings. Ultimately, the test is w as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court. C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012). We have stated, the discretion that a trial court employs in custody matters should be accorded the utmost respect, given the special nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned. Indeed, the knowledge gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record. Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). -5 - J-S29001-14 The primary concern in any custody case is the best interests of the -interests standard, decided on a case-by-case basis, considers all factor Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)). W competent evidence of record, and we defer to the trial court on issues of credibility and weight of the evidence. If competent evidence supports the n if the record could also support the opposite result. In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Additionally, [t]he parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is of the child was careful and thorough, and we are unable to find any abuse of discretion. S.M. v. J.M., 811 A.2d 621, 623 (Pa.Super. 2002) (quoting Robinson v. Robinson, 645 A.2d 836, 838 (Pa. 1994)). With any custody case under the Act, the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. In determining best interests under the Act, the trial court must consider the sixteen factors listed under section 5328(a). See E.D. v. M.P., 33 A.3d 73, 82 (Pa. Super. -6 - J-S29001-14 2011). Additionally, where a request for relocation of the subject child is involved, the trial court must consider the ten relocation factors under section 5337(h)(3) of the Act. In its opinion, the trial court here presented a complete analysis of all the relevant factors enumerated 23 Pa.C.S.A. § 5328(a) and 5337(h). See C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super 2013), (holding, inter alia, that the trial court must set forth its mandatory assessment of the sixteen best interest factors in 23 Pa.C.S.A. § 5328(a)), and A.M.S. v. M.R.C., 2013 PA Super 156 (Pa. Super. 2013) (holding, inter alia, that the trial court must consider all of the relocation factors under 23 Pa.C.S.A. § 5337(h)). After our careful review of the record, we are satisfied the trial court Lawrence County, Tennessee. The trial court also properly addressed the issues concerning the grant of primary physical custody of Child to Mother and the grant of partial physical custody of Child to Father. Accordingly, we 27, opinion. Order affirmed. -7 - J-S29001-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/24/2014 -8 -

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